Picken: Lawyers and clients’ working papers should be treated the same
The High Court has widened legal advice privilege to all internal documents created by the client where the dominant purpose is to seek legal advice, even if they would not actually be sent to a lawyer.
Mr Justice Picken said that given a lawyer’s working papers were the subject of privilege, “it is difficult to see why what are, in effect, a client’s working papers should not also attract such privilege”.
They were “the mirror image of each other” and so should be treated in the same way for the purposes of legal advice privilege.
In Aabar Holdings SARL & Ors v Glencore PLC & Ors [2026] EWHC 877 (Comm), the judge held that the key 2003 Court of Appeal authority of Three Rivers (No5) did not address this situation, and that no authority both before and after it, or academic commentary, prevented the assertion of a claim to privilege for intra-client documents.
The claimant accepted that privilege applied to intra-client documents which evidenced the substance of privileged communications or were intended to be communication between client and solicitor but were not sent.
Given that, Picken J said, it “would make no sense for legal advice privilege not to be available in respect of intra-client documents whose dominant purpose is to identify an issue on which the client proposes to seek advice from a lawyer but at a time at which advice has not yet been sought from the lawyer in relation to the issue identified”.
He went on: “There can be no distinction in principle between, on the one hand, an engagement or instruction letter that identifies the issue on which legal advice will be sought and, on the other hand, another document or communication created by the client which identifies the issue on which legal advice will be sought.”
It would also not make sense for privilege not to apply to intra-client documents “whose dominant purpose is to identify facts that the client proposes to communicate to a lawyer for the purpose of seeking legal advice, but where the document itself is not intended to be sent to the lawyer”.
The judge said: “An example might be a client, the day before he or she is due to meet his lawyer for the first time, writing himself or herself a memorandum with notes for the meeting.
“Another example might be one member of the client group, who will not be attending the meeting with the lawyer, emailing another member of the client group with information or thoughts in preparation for the meeting.”
A briefing from Brick Court Chambers – whose members, Tony Singla KC, Kyle Lawson and Jacob Rabinowitz, instructed by Clifford Chance, acted for the defendants – noted that the judgment did not directly address the other well-known issue raised by Three Rivers (No5), namely which employees of a company counted as ‘the client’ for the purposes of a claim to legal advice privilege.
“In SFO v ENRC [2018] EWCA Civ 2006, the Court of Appeal indicated that that issue would need to be reconsidered by the Supreme Court in an appropriate future case,” it noted.
In an earlier ruling in this case, Picken J held that the so-called ‘shareholder rule’ – preventing a company from claiming privilege against its own shareholders – should be regarded as no longer existing.
Leave a Comment